Reporting By: Amit Kashyap
The Bombay High Court single judge Bench of Justice VG Bisht in Alnesh Akil Somji vs The State Of Maharashtra, Anticipatory Bail application NO. 2857 OF 2021 has held that there is no legal bar in granting Anticipatory Bail to an accused even if he is in prison in connection with another offence.
The Court while dealing with an anticipatory bail plea under Section 438 of the Criminal Procedure Code (CrPC), faced with the question, “Whether an anticipatory bail application would be maintainable by an accused who is already arrested and is in magisterial custody in another crime?”
The bail of the appellant has been rejected by the Sessions Judge on ground of ‘maintainability’ relying on SC judgement in Narinderjit Singh Sahni and Another Versus Union of India and Others(2002) 2 SCC 210 and Sunil Kallani V/s. State of Rajasthan 2021 SCC OnLine Raj 1654.
The Counsel for appellant opposed this relying on SC Judgement in Sushila A Aggarwal vs State (NCT of Delhi) and ANR (2020) 5 Supreme Court Cases 1 and argued that Sessions Judge erred in giving a restrictive interpretation to the scope of Section 438 CrPC. The same is bad in law, and liable to be set aside.
Justice VG Bisht started by mentioning he is taking an exception to ratio laid down in Narinderjit Singh Sahni’s as he has his different reason.
“Its cardinal principle of law that every law is design to promote and further the ends of justice. Statutory interpretation, purpose and the spirit of the provision must be gathered from its intendment.”
He said that neither CrPC nor does any other statute bar Courts from deciding the anticipatory bail application of someone already in custody in another offence. The restriction cannot be stretched to include arrest made in any other offence as that would be against the purport of the provision.
“the only restriction provided is under Section 438 (4) of the Cr. PC, which says that the provision will not apply to accusations of offences which are stated in Section 438 (4) of the Cr.P.C. Similarly, certain special statutes have excluded the operation of Section 438 of the Cr.PC for accusation of offences punishable under those special statutes.”
Reflecting on the principles laid down in Gurbaksh Singh Sibbia Vs. State of Punjab, 1980 70 SC regarding the bar or restriction on the exercise of power to grant anticipatory bail, the Court stated Anticipatory Bail will not be maintainable if a person is in custody in connection to similar offence.
“Anticipatory Bail will not be maintainable in case a person is in custody in the same offence for which pre-arrest bail is sought, the restriction, if any, upon maintainability of prearrest bail will be there only if a person is in custody in that particular offence itself.”
The Judge opined that Narinderjit Singh Sahni and Another (supra) was in respect of maintainability of Article 32 wherein relief in the nature of Section 438 was sought. Even, the said judgment does not hold in very clear terms that a person arrested in one offence cannot seek the relief provided under Section 438 of Cr.PC in another offence merely on the ground that he stands arrested in another district offence.
In view of the above, it was ruled that accused has every right, even if he is arrested in number of cases, to move in each of offence registered against him irrespective of the fact that he is already in custody but for different offence, for the reason that the application (s) will have to be heard and decided on merits independent of another crime in which he is already in custody.
“In my considered opinion, there was no proper interpretation of Section 438 of the Cr.PC at the hands of learned Additional Sessions Judge. One cannot and must not venture, under the garb of interpretation, to substantiate its own meaning than the plain and simple particular though provided by statute. What has not been said cannot be inferred unless the provision itself gives room for speculation. If the purpose behind the intendment is discernible sans obscurity and ambiguity, there is no place for supposition.”
The impugned order was accordingly set aside.
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Important Citation: Sushila A Aggarwal vs State (NCT of Delhi) and ANR (2020) 5 Supreme Court Cases 1
Advocates For Petitioner: Mr. Subodh Desai Mr.Kartik Garg, Mr. Ajay Vazirani, Mr. Ameya Deosthale and Mr. Sahil Namavati.
Advocate For Respondent: Mrs. P.P.Shinde, APP for the Respondent -State.
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Judgements In Criminal Law 